United States v. Gino Carlucci ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10183
Plaintiff-Appellee, D.C. No. 2:10-cr-00464-KHV
v.
MEMORANDUM*
GINO CARLUCCI, a.k.a. Gene David
Odice,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Kathryn H. Vratil, District Judge, Presiding**
Submitted March 13, 2018***
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Gino Carlucci appeals pro se from the district court’s order denying his
motion for a new trial under Federal Rule of Criminal Procedure 33. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathryn H. Vratil, Senior United States District Judge
for the District of Kansas, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Carlucci’s Rule 33
motion. See United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en
banc) (stating standard of review). First, Carlucci’s evidence concerning how
Robert Garback came into possession of the two watches might be admissible to
impeach Garback, but does not undermine the evidence that Carlucci obtained the
watches from Garback under false pretenses. See id. at 1257 (newly discovered
evidence does not support a new trial if it is “merely impeaching”). Second, the
record does not show that a new trial would probably result in an acquittal. See id.
There is significant evidence in the record implicating Carlucci in the conspiracy to
commit money laundering, conspiracy to defraud the United States, and willful
filing of a false tax return. See United States v. Jackson, 209 F.3d 1103, 1106-07
(9th Cir. 2000) (affirming denial of motion for new trial where new evidence
would not have created a reasonable doubt). On this record, Carlucci also cannot
show that the government violated its obligations under Brady v. Maryland, 373
U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).
Finally, insofar as Carlucci is challenging the denial of his motion for
appointment of counsel, he has not shown that the district court abused its
discretion. See United States v. Harrington, 410 F.3d 598, 600 (9th Cir. 2005).
AFFIRMED.
2 17-10183